Mr. Ed Gatt was dismissed from the Company's
service effective December 1, 2005.

This matter was grieved by the Union be letter
dated February 8, 2006.

It is the Union's position that the discipline
was excessive and discriminatory, and that the Company had violated Mr. Gatt's
due process and right to a fair and impartial hearing. The Union requests that
Mr. Gatt be returned to service with full seniority and compensated for all
lost wages and benefits.

The Company asserts that Mr. Gatt's dismissal
was warranted and appropriate under the circumstances.

The grievor was discharged December 19, 2005. The
main argument advanced by the Employer is based on the doctrine of a
culminating incident. In the instant case the Employer takes the position that
it had just cause to discharge the grievor as a result of two incidents, both
of which took place November 30, 2005. Those two incidents, of themselves, in
the normal course of events, would not have warranted discharge but, coupled
with the grievor's prior discipline record, argues the Employer, there are
grounds for discharge.

The Union argues that the events themselves were not
sufficiently proved to warrant discipline but, in any event, do not warrant
discharge. It also submits that the Employer was out to "get" the
grievor as demonstrated by what it calls a highly prejudicial memorandum written
by a Company manager about the second incident. Finally, it argues that a
Notice to Appear for the investigation of one of the incidents fails to include
one of the reasons for the discharge, as indicated on the Form 780.

The first question to be determined
is whether the Employer is correct in considering this matter to fall within
the culminating incident doctrine. After considering the evidence, the
Arbitrator finds it does not. For that doctrine to apply there must be a past
record of discipline such that the last, or culminating, incident is the
proverbial last straw that broke the camel's back. In the instant case the past
disciplinary record necessary to trigger the doctrine does not exist. The
Employer provided a litany of events in support of its position. However, there
are three reasons why, notwithstanding such a list, the doctrine does not
apply. First, the Form 780 under "Active Discipline" has only one
notation, a deferred suspension. Under "Total Active Discipline",
there are two notations: the aforementioned deferred suspension and the instant
discharge. The Arbitrator is unable to conclude from the Form 780 that there is
a past disciplinary record that would normally trigger the culminating incident
doctrine. (See, e.g., 3314, 3454 and 3511.)

Second, the Employer relies on a series of events
from December 17, 2003 to the time of the events giving rise to the discharge.
However, at the hearing, the Employer acknowledged that, except for the one
event resulting in the deferred suspension, none of the other incidents
resulted in formal discipline. If they were not discipline the events can not
be used by the Employer to fashion a previous disciplinary record.

Third, the Employer relies on a series of events and
disciplinary actions from December 1982 until August 4, 2000. These events all
took place more than five years before the two alleged incidents which limits
their value as a past disciplinary record. As well, they all themselves
culminated in a discharge in August 2000, subsequently resolved by the parties
through a tri-party formal Return to Work Contract.

Having found the doctrine of culminating incident
does not apply, each incident must be looked at independently to see if
discipline is warranted and, if so, what the appropriate level of discipline
is.

In dealing with the first incident, the grievor is
accused of conduct unbecoming in relation to a confrontation with a fellow RTC.
During the investigation, the grievor was candid about what he had said and
done, acknowledging that he had acted improperly. He indicated that he acted as
he did as a "spontaneous reaction based on an unjust accusation" by a
fellow employee, Mr. Brankley. He further acknowledged that Mr. Brankley, the
other RTC involved, did not deserve the way he spoke to him. He expressed his
intention to apologize to Mr. Brankley and agreed that the added pressure he
put on Mr. Brankley during the shift was unnecessary and unwarranted.

For his part, during the investigation, Mr. Brankley
acknowledged that, whereas it hadn't been his intention, a remark which he made
to the grievor about the latter sleeping in his chair could be viewed as
provocation.

The incident warrants discipline. Although it is at
least arguable that the grievor was provoked, he over-reacted to the situation
and his over-reaction put undue stress on Mr. Brankley in a safety sensitive
position. While not formally disciplined about unprofessional behaviour, at
least since December 2003, the grievor has definitely been coached about such behaviour.
This must be taken into consideration, along with, of course, his
acknowledgement of wrongdoing and offer to apologize.

The second incident alleges a failure to properly
perform the duties of an RTC in not providing operating authority to Signal
Technician Meeks at Bethnal East for no apparent reason. The grievor was also
accused of unacceptable behaviour in a radio communication with Mr. Meeks. It
is the latter that the Union states should be struck as it was not part of the
original Notice to Appear. Whether that is the case or not, the Arbitrator
finds no substance to this part of the Employer's allegation after hearing a
tape of the radio communication between the two. There was nothing rude and
belligerent as suggested by the Employer.

With respect to the principal allegation, the
Arbitrator is satisfied, based on the evidence, that the grievor could have
handled the situation in a better and more professional manner. At no time was
there any danger to Mr. Meeks, or anyone else, but he should have been more
pro-active after the 30 minutes he had given to Mr. Meeks to conduct the code
unit test had expired. In the view of the Arbitrator although there was no
urgency to call Mr. Meeks, prudence would have suggested a call well before the
approach of Train No. 300.

As a result of this, discipline is warranted.

Although discipline is warranted for the two
incidents neither one is serious. Together do they warrant discharge? In the
first incident, there was some degree of provocation by Mr. Brankley, and an
acknowledgement of wrongdoing and an offer of apology on the part of the
grievor.

In the second incident, there was never any danger.

Indeed, the grievor was vigilant at least to the
extent to make sure that would be no issue with Train 300. Also to be
considered is an acknowledgement by Mr. Vernon, S&C Supervisor, in an email
sent to Pierre Arsenault that Mr. Meeks was not entirely blameless in the whole
sequence of events :

I am extremely sorry to waste everyone's time with
this, however I believe that this is yet again another example of the problems
we face daily on the YX desk. This tape documents an exchange which occurred
yesterday, between S&C technician Jeff Meeks and RTC Ed Gatt. When Jeff
first cancels his time he asks for the use of the code bucket at Bethnal (he
does not specify west or east end, Jeff's fault). After which end he wants gets
sorted out the RTC tells him to call back after #2 goes by. …

With respect to the first incident, as an RTC, the
grievor has a duty to act in a particularly cautious and non-belligerent manner
and not to add more stress to the already stressful environment. His actions
towards Mr. Brankley, even though somewhat provoked, were not called for. His
actions, when considered with the coaching he had received, warrant a one month
suspension.

For the second incident, the Arbitrator believes a
one month suspension is also warranted. He could have handled the situation
differently and should have done so, given the potential, at least, for an
issue arising at Bethnal East. In determining that a one month suspension, as
opposed to a longer suspension, is appropriate, the Arbitrator has also
considered Mr. Vernon's e-mail and the impression left by it that there may no
longer be, on the part of the Employer, an objective consideration of the
grievor's behaviour or performance.

On the other hand, the amount of coaching received
by the grievor has not been insignificant and the grievor must understand that
although he is being reinstated he is not being held blameless and clear
attitude adjustments on his part are required or discharge in the future might
well be justified.

The discharge is rescinded and a two month
suspension without pay, but without loss of service or seniority is
substituted. The record of the employee is to be amended to reflect the above.
The grievor is to be reinstated forthwith to the position held by him
immediately prior to his discharge. He is to be made whole for the period
between the end of the two month suspension and his return to work.

The Arbitrator remains seized to deal with any
issues arising from the interpretation or implementation of this award.